PA Court Finds IAC in Murder Case Based on Defense Counsel Failing to Contact Alibi Witness He Didn’t Trust

A few days ago, the Philadelphia Inquirer published the story, “Free after 10 years in prison, former lifer still feels trapped.” The article is about the release of Edward Stewart after he served 10 years for a murder he did not commit. Why was he wrongfully convicted? His trial counsel decided that Stewart’s fiancee was not credible and would have hurt his alibi. Importantly, he reached these conclusions without ever interviewing the fiancee as a potential alibi witness. And that’s why his conviction was thrown out.

I’ve posted about any number of these cases on my blog, so we should all know the score by now. The opinion in the case is Commonwealth v. Stewart, and here are some choice quotes supporting the court’s finding of ineffective assistance of counsel:

-According to the PCRA court, which presided over this trial, failing to interview the “known alibi witness was inexcusable here where there was only one eyewitness presented by the Commonwealth.” 

-The Commonwealth…contends that trial counsel, despite having no prior substantive experience with the witness and never meaningfully interviewing her, had a reasonable basis for not calling her as a witness. Neglecting to call a witness differs from failing to investigate a witness in a subtle but important way….A claim that trial counsel did not conduct an investigation or interview known witnesses presents an issue of arguable merit where the record demonstrates that counsel did not perform an investigation….It can be unreasonable per se to conduct no investigation into known witnesses.

-Pointedly, our Supreme Court in a PCHA case held that it was improper for trial counsel to judge the credibility of a witness without interviewing that person.

-The Commonwealth attributes a reasonable basis for counsel’s failure to substantively interview the witness where none exists. Here, counsel argued during his closing statement that Appellee testified credibly as to his alibi. Yet, he never substantively interviewed the alibi witness. 

-Absent some type of substantive interaction with the witness, the credibility of the alibi witness was not for trial counsel to arbitrarily decide….As our Supreme Court said in Mable,

the question here is the decision not to interview [the witnesses], not the decision to refrain from calling them at trial….the value of the interview is to inform counsel of the facts of the case so that he may formulate strategy. Perhaps, after questioning these witnesses, counsel may have concluded that the best strategy was not to call them….However, no such claim of strategy can be attached to a decision not to interview or make an attempt to interview eyewitnesses prior to trial.

-Like in Mable, counsel could have determined after interviewing the alibi witness that she should not be presented. Nonetheless, no such claim of a reasonable strategy attaches to a decision not to meaningfully interview the alibi witness before trial.

-CM